McNeil v. District of Columbia ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JADEN MCNEIL, et al., :
:
Plaintiffs, : Civil Action No.: 14-1981 (RC)
:
v. : Re Document Nos.: 11, 12
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART & DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND GRANTING IN PART & DENYING IN PART DEFENDANT’S CROSS MOTION FOR SUMMARY
JUDGMENT
I. INTRODUCTION
In this action, Plaintiffs Jaden McNeil, Patrick Canavan, and Daniel McNeil (collectively
“Plaintiffs”) seek from Defendant the District of Columbia (“the District”) an award of
attorneys’ fees and costs incurred in pursuing an administrative claim under the Individuals with
Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs have moved for
summary judgment on the basis that they were the prevailing parties, and further that the fees
and expenses requested are reasonable. See Pls.’ Mot. Summ. J., ECF No. 11. The District
disputes Plaintiffs’ contentions regarding the reasonableness of the fees and expenses sought in
its opposition and cross motion for summary judgment. See Def.’s Cross Mot. Summ. J., ECF
No. 12; Def.’s Opp’n Mot. Summ. J. (“Def.’s Opp’n”), ECF No. 13. The Court concludes that
part, but not all, of Plaintiffs’ request is reasonable. Accordingly, the Court grants in part and
denies in part the parties’ respective motions.
II. FACTUAL BACKGROUND
In May of 2014, Plaintiffs filed a due process complaint against the District of Columbia
Public Schools (“DCPS”). See Am. Compl. ¶ 24, ECF No. 3; see also Pls.’ Reply to Def.’s
Opp’n to Mot. Summ. J. (“Pls.’ Reply”) Ex. D, ECF No. 15-4. In the due process complaint,
Plaintiffs alleged that the District had failed to provide Plaintiff Jaden McNeil with a free and
appropriate public education, pursuant to his rights as a disabled student entitled to special
education and related services. See Pls.’ Reply Ex. D. In support of this contention, Plaintiffs
alleged three instances during which DCPS failed to uphold its obligations to Jaden under the
IDEA: in 2012, when DCPS failed to amend Jaden’s insufficient individualized education
program (“IEP”) after his enrollment at Hospitality High School Public Charter School
(“Hospitality”); when Hospitality failed to address Jaden’s need for a different IEP or
educational setting; and in 2013, when DCPS began developing an alternative IEP for Jaden, but
took over a year to do so, leaving Plaintiffs Patrick Canavan and Daniel McNeil to fund
alternative education options for Jaden. 1 See id. at 4–6.
After withdrawing Jaden from Hospitality, Plaintiffs sought placement for Jaden at
Legacy Outdoor Adventures (“Legacy”), a wilderness program, which he successfully
completed. See id. at 5. Upon completion of the Legacy program, and after investigation by
Jaden’s parents and notice to both Hospitality and DCPS, Jaden transferred to the F.L.
Chamberlain School (“Chamberlain”) in Massachusetts, a residential school approved by the
1
Specifically, Plaintiffs asserted that Jaden entered Hospitality after failing the eleventh
grade twice while enrolled at a different public charter school. Once at Hospitality, DCPS did
little to alter Jaden’s existing IEP and, as a result, he was continually absent and tardy, failed to
do his homework, and acted out. See Pls.’ Reply. Ex. D at 4–5.
2
State Superintendent of Education for placement of DCPS special education students. 2 See id. at
6. Plaintiffs alleged that, after relocating Jaden to Chamberlain, DCPS agreed to fund a portion
of his enrollment at the school, but never confirmed this with proper documentation. See id.
During Jaden’s enrollment at Chamberlain, Plaintiffs Patrick Canavan and Daniel McNeil were
responsible for funding Jaden’s ongoing education, and Jaden’s IEP remained unfinished. See
id.
The due process complaint was heard on August 1st, 6th, and 14th of 2014. See Am.
Compl. Ex. 1, ECF No. 3-1. At the conclusion of the proceedings, the hearing officer
determined that DCPS failed to provide Jaden a Free and Appropriate Public Education
(“FAPE”), as required by 34 C.F.R. § 300.17 (2011), when it failed to correct Jaden’s
inappropriate IEP during his enrollment at Hospitality, see Am. Compl. Ex. 1 at 14–16. The
hearing officer also determined that Plaintiffs had acted appropriately in their decisions to both
send Jaden to Legacy and, subsequently, to enroll Jaden at Chamberlain. See id. at 16. As a
result, the District was ordered to reimburse Plaintiffs for the tuition, fees, and expenses incurred
in sending Jaden both to Legacy and to Chamberlain. See id. Plaintiffs’ claims regarding
DCPS’s alleged failure to convene an IEP meeting in 2012 and the delay in revising Jaden’s IEP
were denied. See id. at 16–17. The hearing officer also denied Plaintiffs’ claim for
2
As described by the hearing officer in his determination, Jaden’s progress while at
Chamberlain was “dramatic.” See Am. Compl. Ex. 1 at 11, ECF No. 3-1 (Hearing Officer’s
decision). He earned passing grades in each course in which he enrolled, generally progressed
through Chamberlain’s behavior management program, and, at the time of the due process
hearing, was expected to graduate with a high school diploma. See id. at 10; Pls.’ Statement of
Undisputed Material Facts ¶ 39 (“Pls.’ SOF”), ECF No. 11-1; Def.’s Response to Pls.’ Statement
of Material Facts ¶ 39 (“Def.’s SOF”), ECF No. 12-1. Jaden has since graduated from
Chamberlain and enrolled in college. See Pls.’ SOF ¶ 65; Def.’s SOF ¶ 65.
3
compensatory education, as a result of Jaden’s excellent results following his placements at
Legacy and Chamberlain. 3 See id. at 18.
On November 23, 2014, Plaintiffs filed an initial complaint against the District for the
recovery of attorneys’ fees and expenses incurred in connection with the administrative due
process hearing. See Compl., ECF No. 1. In their Amended Complaint, filed on March 20,
2015, Plaintiffs claim to be entitled to an award of legal fees and costs incurred as a result of
their successful litigation for Jaden’s entitlement to a FAPE. See Am. Compl. ¶ 30. Plaintiffs
subsequently filed a Motion for Summary Judgment on June 24, 2015, requesting $60,643 in
legal fees and $2,252.74 in expenses. See Pls.’ Mot. Summ. J. ¶ 3. The District subsequently
filed an Opposition and Cross Motion, asking that Plaintiffs’ Motion be denied in its entirety or,
alternatively, requesting that the amount of fees and expenses awarded be substantially reduced.
See generally Def.’s Cross Mot. Summ. J.; Def.’s Opp’n. Plaintiffs filed a Reply to the District’s
Opposition on August 12, 2015. See Pls.’ Reply. The District subsequently filed its own Reply
on August 24, 2015, reiterating its position that Plaintiffs failed to provide evidence supporting
their hourly rates, and further, that Plaintiffs’ attorney charged an unreasonable number of hours
for the proceedings. See generally Def.’s Reply, ECF No. 18. The District reiterated that any
3
“Compensatory education” may be awarded at the court’s discretion in an IDEA case.
The relief is awarded in the form of “educational services . . . to be provided prospectively to
compensate for a past deficient program.” Reid ex rel. Reid v. District of Columbia, 401 F.3d
516, 522 (D.C. Cir. 2005) (quoting G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295,
308 (4th Cir. 2003) (internal quotation marks omitted). As part of that compensatory education,
Plaintiffs apparently sought reimbursement for four years of supports at the college Jaden would
be attending. The hearing officer found the expert testimony supporting this request
“incredulous,” because that expert, along with the Chamberlain staff and Plaintiffs, had “lauded
[Jaden’s] progress in the wilderness program and at [Chamberlain] and [Jaden’s] anticipated
completion of high [school] is evidence that any denial of a FAPE has been rectified . . . .” Am.
Compl. Ex. 1 at 18.
4
amount awarded to Plaintiffs should be reduced, on the grounds of Plaintiffs’ limited success on
the merits. See id. at 11–17.
III. ANALYSIS
A. Legal Standard for Summary Judgment
A party moving under the IDEA for summary judgment on legal fees must demonstrate
prevailing party status and the reasonableness of the fees requested in terms of the hours spent
and the hourly rate. See McAllister v. District of Columbia, 21 F. Supp. 3d 94, 99 (D.D.C. 2014).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted
if the movant shows that “there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986) (quoting Fed. R. Civ. P. 56). Summary judgment should be granted against a party
“who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In response to a motion for summary judgment, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. Id. at 324. 4
4
Plaintiffs contend that for those few facts that the District has labeled “disputed,” the
District “has not supported its dispute with references to the record, as required by this Court’s
rules” and, as a result, that the District has effectively conceded Plaintiffs’ statement of material
facts and this Court is “require[d] . . . to accept [Plaintiffs’] statement of material facts as the
basis for its legal rulings.” Pls.’ Reply at 10; see also Local Civ. R. 7(h)(1) (“[T]he court may
assume that facts identified by the moving party in its statement of material facts are admitted,
unless such a fact is controverted in the statement of genuine issues filed in opposition to the
motion.”). Not so. Even putting aside the fact that, when plaintiffs (like those here) bear the
burden of proof, a moving defendant’s summary judgment burden “may be discharged” merely
by “showing—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case,” Celotex, 477 U.S. at 325, the Local Rule’s language—
may—is discretionary, see Arrington v. United States, 473 F.3d 329, 334–35 (D.C. Cir. 2006).
5
B. Award for Reasonable Attorneys’ Fees
Pursuant to the IDEA, a district court may award “reasonable attorneys’ fees” to a
prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B)(i). In
doing so, the Court follows a two-step inquiry: First, the Court must decide whether the party
seeking attorneys’ fees is the prevailing party; 5 and second, the Court must establish whether the
fees requested are reasonable. See McAllister, 21 F. Supp. 3d at 99; Jackson v. District of
Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). To establish an appropriate fee award the
court must determine the number of hours counsel reasonably expended on the litigation and the
reasonable hourly rate for that work. See Eley v. District of Columbia, 793 F.3d 97, 100 (D.C.
Cir. 2015).6 “[T]he number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate” provides “[t]he most useful starting point for determining the amount of
a reasonable fee.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
1. Hourly Rate
The parties dispute whether the rates requested by Plaintiffs are “reasonable” within the
meaning of the IDEA. 20 U.S.C. § 1415(i)(3)(B)(i)(1); see also Pls.’ Mem. Supp. Mot. Summ. J.
at 12–16 (“Pls.’ Mem. Supp.”), ECF No. 11; Def.’s Mem. Supp. Opp’n at 4–10, ECF No. 13. A
plaintiff bears the burden of demonstrating that the requested hourly rate is reasonable. In re
The rule “permits, but does not require” the Court to assume facts that are not controverted in the
defendant’s opposing statement of material facts, and a court acts “within its discretion in
reviewing the entire record.” Id. Accordingly, the Court considers the full record here.
5
Here, the District does not contest that Plaintiffs are the prevailing party within the
meaning of the IDEA.
6
In many cases a court considering a fee award must proceed to a third step: determining
“whether use of a multiplier is warranted.” Eley, 793 F.3d at 100. Congress has prohibited
application of a bonus or multiplier in IDEA cases. Id.; see also 20 U.S.C. § 1415(i)(3)(C) (“No
bonus or multiplier may be used in calculating the fees awarded under this subsection.”).
6
North (Bush Fee Application), 59 F.3d 184, 189 (D.C. Cir. 1995) (per curiam). A plaintiff may
fulfill this burden “by submitting evidence on at least three fronts: ‘the attorneys’ billing
practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates in the
relevant community.’” McAllister, 21 F. Supp. 3d at 100 (quoting Covington v. District of
Columbia, 57 F.3d 1101, 1103 (D.C. Cir. 1995)). If a plaintiff provides sufficient and
convincing evidence on these matters, the number of hours billed and the attorney’s hourly rates
are deemed reasonable, and the burden then shifts to the defendant to rebut the plaintiff’s
showing. See Blackman v. District of Columbia, 677 F. Supp. 2d 169, 172 (D.D.C. 2010);
Watkins v. Vance, 328 F. Supp. 2d 23, 26 (D.D.C. 2004). If neither party provides adequate
evidence demonstrating that the hourly rates are reasonable, however, “the Court has discretion
to determine the amount of that rate by reference to the Laffey Matrix.” 7 See Brown v. District of
Columbia, 80 F. Supp. 3d 90, 96 (D.D.C. 2015).
a. The Prevailing Market Rate for Ms. Savit’s and Ms. Becker’s Services
Plaintiffs seek attorneys’ fees for the work of Diana Savit, Plaintiffs’ primary counsel,
and Lisa Becker, who performed 3.2 hours of billed work in Ms. Savit’s absence.
Plaintiffs argue that an hourly rate of $415 for Ms. Savit’s legal services is reasonable
and reflects the prevailing market rate. Pls.’ Mem. Supp. Mot. Summ. J. at 12–16. This rate
reflects Ms. Savit’s customary hourly rate as of January 1, 2014, although Plaintiffs were
7
The Laffey Matrix is a fee schedule used by some courts to determine the proper hourly
rates for legal work. The United States Attorney’s Office for the District of Columbia prepares
the matrix for use when a “fee-shifting” statute provides for the recovery of attorneys’ fees. See
Eley, 793 F.3d at 101; see also, e.g., USAO Laffey Matrix—2003-2014, available at
http://www.justice.gov/sites/default/files/usao-dc/legacy/2013/09/09/Laffey_Matrix%202014.pdf
(last visited Dec. 29, 2015). While the Laffey Matrix is adjusted for inflation, generally, a
competing matrix, called the LSI Laffey Matrix, “adjusts for the increases in costs for legal
services only.” Eley, 793 F.3d at 101–02.
7
charged only $390 an hour during the entirety of their representation, as that rate was Ms. Savit’s
existing rate when the representation began. See Pls.’ Statement of Undisputed Material Facts ¶¶
74, 78 (“Pls.’ SOF”), ECF No. 11-1. In its Opposition, however, the District argues that
Plaintiffs’ motion should be denied because they have not provided sufficient evidence of the
relevant market rate, relying only upon an affidavit from their attorney, Ms. Savit, in addition to
previous attorneys’ fee awards. See Def.’s Mem. Supp. Opp’n at 4–5. In the alternative, the
District argues that Ms. Savit’s hourly rate should not exceed 75% of the 2013–2014 Laffey
Matrix rate. See id. at 7–8; see also Def.’s Cross Mot. Summ. J. Ex. 1, ECF No. 12–2 (providing
matrix).
In Eley, the D.C. Circuit recently clarified a plaintiff’s burden when seeking an award of
attorneys’ fees under the IDEA. “[A] fee applicant must ‘produce satisfactory evidence—in
addition to the attorney’s own affidavits—that the requested rates are in line with those
prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.” Eley, 793 F.3d at 100 (quoting Blum v. Stenson, 465 U.S. 886, 895
n.11 (1984)). One type of evidence that a party can submit which “‘provides a useful starting
point’ in calculating the prevailing market rate” is a fee matrix, the most common of which is the
Laffey Matrix. Id. (brackets omitted) (quoting Covington, 57 F.3d at 1109). Such matrices
remain “‘somewhat crude’” measures of estimating the prevailing market rate, however, and to
meet her burden a party seeking to base her fee request on such measures must provide
“evidence that her ‘requested rates are in line with those prevailing in the community for similar
services,’ i.e., IDEA litigation.” Id. at 101, 104 (quoting Covington, 57 F.3d at 1109). That
evidence may be found in “‘surveys [that] update [the matrices]; affidavits reciting the precise
fees that attorneys with similar qualifications have received from fee-paying clients in
8
comparable cases; and evidence of recent fees awarded by the courts or through settlement to
attorneys with comparable qualifications handling similar cases.’” Id. at 101 (quoting
Covington, 57 F.3d at 1109). At bottom, although the D.C. Circuit declined in Eley “to
categorically determine whether IDEA proceedings constitute the type of litigation that is
‘sufficiently complex’” to warrant application of any version of the Laffey Matrix, the Court did
“make clear that Laffey should not be the default rate for fees awarded pursuant to the IDEA”
and that, if a party seeks an award based on the Laffey Matrix, “it must establish that its rates
reflect what attorneys of comparable skill in the region generally charge for IDEA proceedings.”
Snead v. District of Columbia, --- F. Supp. 3d ----, No. 15-cv-00376, 2015 WL 5921901, at *3
(D.D.C. Oct. 7, 2015).
To support their claim that Ms. Savit’s proposed hourly rate of $415 is reasonable,
Plaintiffs originally submitted an affidavit from Ms. Savit describing her experience, billing
practices, and past history of litigating IDEA cases, including for purposes of obtaining fee
awards. See generally Decl. of Diana M. Savit (“Savit Decl.”), Pls.’ Mot. Summ. J. Ex. B, ECF
No. 11-5. Plaintiffs also cited several cases in this district in which, they claim, courts awarded
fees based on an hourly rate similar to that requested by Ms. Savit here. See Pls.’ Mem. Supp. at
13–14 (citing cases awarding fees based on hourly rates of $348.75 through $625 for attorneys
with 15 to over 20 years of experience, although the D.C. Circuit in Eley has since vacated the
$625 award).
The District contends that Ms. Savit’s affidavit is merely “conclusory” and that Plaintiffs
must proffer additional information in order to establish the prevailing market rate. Def.’s Mem.
Supp. Opp’n at 5. On this score, the District is largely correct. As Eley instructs, a plaintiff must
provide evidence beyond the attorney’s own affidavit to show that the “requested rates are in line
9
with those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” 793 F.3d at 100 (quoting Blum, 465 U.S. at 895 n.11). To the
extent that the District argues that Plaintiffs have failed to carry their burden altogether, however,
the Court finds that Plaintiffs’ citation to other IDEA cases in this district awarding fees within a
wide range encompassing the fees Ms. Savit charged here precludes the Court from concluding
that Plaintiffs have failed to support any fee award.
That said, the Court must determine whether the particular rate Plaintiffs request is out of
step with the prevailing market rate. The Court acknowledges that Plaintiffs place no overt
reliance on the Laffey Matrix in seeking the $415 hourly rate for Ms. Savit’s time, and that Ms.
Savit’s proffered rate is in fact significantly below the 2013–2014 Laffey rate of $510 per hour
for an attorney with her experience. 8 Nevertheless, the District argues that Ms. Savit’s requested
rate remains too high, and that the prevailing market rate in IDEA cases is 75% of the Laffey rate
which, based on the 2013–2014 rate, would result in an hourly rate of $382.50. See Def.’s Mem.
Supp. Opp’n at 7–8.
The District points to a “substantial body of case law” in this district supporting the
proposition that IDEA cases are typically compensated at 75% of the Laffey matrix rate or less.
See id. at 7–8 & n.3 (citing cases). Indeed, courts in this district continue to hold that “[t]he
notion that a rate equivalent to 75% of Laffey rates approximates the prevailing market rate for
IDEA administrative proceedings finds support in the vast number of district court cases
8
One district court recently observed that courts in this jurisdiction have interpreted Eley
“as strongly suggesting that IDEA matters are infrequently comparable to complex federal
litigation, and therefore, full Laffey rates should not be awarded in such cases.” Snead, 2015 WL
5921901, at *3. But see Eley, 793 F.3d at 105 (Kavanaugh, J., concurring) (“I would simply add
that, in my view, the United States Attorney’s Office Laffey matrix is appropriate for IDEA
cases.”).
10
awarding IDEA fees at this rate.” Reed v. District of Columbia, --- F. Supp. 3d ----, No. 14-
1887, 2015 WL 5692871, at *6 (D.D.C. Sept. 28, 2015), appeal docketed, No. 15-7119 (D.C.
Cir.); see also id. at *7 (citing cases); accord Snead, 2015 WL 5921901, at *5.
Plaintiffs attempt to claim otherwise on several grounds. First, Plaintiffs have filed
declarations from Charles Moran and Douglas Tyrka, two District of Columbia special education
practitioners who regularly provide IDEA legal services. See Decl. of Charles Moran (“Moran
Decl.”), Pls.’ Reply Ex. G, ECF No. 15-7; Decl. of Douglas Tyrka (“Tyrka Decl.”), Pls.’ Reply
Ex. H, ECF No. 15-8. Mr. Moran states in his declaration that his firm determines its rates in
reference to the LSI Laffey Matrix, and that his current hourly rate is $779 per hour. See Moran
Decl. ¶¶ 11–12. Mr. Tyrka similarly asserts in his declaration that he typically charges at least
$625 per hour, and further that “most senior lawyers (15 or more years of experience) who
practice in this field charge similar hourly rates . . . . Senior special education lawyers in the
District of Columbia typically charge $500 or more per hour.” Tyrka Decl. ¶ 6. Both Mr. Moran
and Mr. Tyrka further claim that they have read most of this court’s IDEA cases, are familiar
with the market for IDEA legal fees, and attest that Ms. Savit’s hourly rate is lower than that
charged by many lawyers who practice in this area. See Moran Decl. ¶¶ 13, 16–17; Tyrka Decl.
¶¶ 5, 7. Finally, Mr. Moran states that the rates he charges are the necessary result of various
“predatory tactics” imposed by the District of Columbia against special education litigators and
parents, including allegedly conditioning settlement offers on a plaintiff’s waiver of attorneys’
fees or acceptance of nominal sums for “all work performed in the case.” Moran Decl. ¶ 12.
Yet, Mr. Moran and Mr. Tyrka’s anecdotal evidence of their own billing practices and
their conclusory assertions that Ms. Savit’s hourly rate of $425 is within, and perhaps below, the
prevailing market rate ultimately fail to satisfy Plaintiffs’ burden. Cf. Sykes v. District of
11
Columbia, 870 F. Supp. 2d 86, 94 (D.D.C. 2012) (noting that “the mere showing that a high
hourly rate was approved in another case does not in and of itself establish a new market rate or
prove that the new rate is reasonable”). And though they generally claim to have read IDEA fee
cases, neither Tyrka nor Savit cite to a particular case in which a court has determined that the
prevailing market rate is similar to those they charge. In addition, Mr. Moran’s representation
that his rates reflect a tactical effort to thwart certain litigation tactics by the District does not
demonstrate that one practitioner’s choice to build an anticipated failure to recoup full costs into
his fee structure reflects a general increase in the prevailing market rate for IDEA legal services.
See District of Columbia v. Kirksey-Harrington, --- F. Supp. 3d ----, Nos. 14-180, 13-2029, 2015
WL 5014144, at *6 (D.D.C. Aug. 18, 2015) (concluding that Mr. Moran’s affidavit in another
IDEA case alleging similar practices indicates that the parties’ fees were not “based upon any
prevailing market rate analysis but, instead . . . designed to ‘counter’ certain practices by the
District”); accord Snead, 2015 WL 5921901, at *5 (finding that an attorney’s argument that “his
firm was forced to charge the higher LSI Laffey rates by a hailstorm of ‘predatory tactics’ from
the District—namely, conditioning settlement offers on acceptance of nominal fees—is
unpersuasive”).
Second, Ms. Savit’s own declaration argues that the lack of formal discovery, the
informal procedural rules, the largely unpredictable nature of administrative due process
proceedings, and the at times labyrinthine administrative process, present unique practical and
exhaustion-related challenges not posed in Title VII or other types of federal litigation. See Savit
Decl. ¶ 30, 2d Savit Decl. ¶¶ 22–29, Pls.’ Reply Ex. C, ECF No. 15-1. The Court does not doubt
or understate the challenges practitioners face when litigating IDEA cases on behalf of children
with special education needs and their families. Those challenges are undoubtedly different in
12
kind from the circumstances attorneys face when conducting complex federal litigation under
more rigid, and perhaps predictable, discovery rules. “IDEA matters may not be simple—they
may be quite complicated and may even be very labor intensive.” Reed, 2015 WL 5692871, at
*6. But those challenges nevertheless fail to render IDEA matters “‘complex’ federal litigation’
as that term is used in the context of fee awards, and specifically the Laffey matrix.” Id.
The Court further grants that, in unusual cases, an IDEA plaintiff might be able to
“establish the applicability of [the] Laffey [matrix] by proffering evidence that their IDEA
proceeding was unusually complex.” Snead, 2015 WL 5921901, at *4. Here, Plaintiffs do
emphasize, albeit briefly, the fact that the hearing officer in this case awarded reimbursement
both for Jaden’s wilderness program and for interest Plaintiffs had incurred on their home equity
line of credit. See Pls.’ Mem. Supp. at 14–15. The facts indicate that, in doing so, Plaintiffs’
counsel obtained an exceedingly rare result. For that, counsel should be commended, and the
Court takes that result into account when determining whether to reduce the fee award for
Plaintiffs’ degree of success. Yet, beyond citing to the perhaps atypical result of this litigation,
Plaintiffs have not proffered any evidence to indicate that the course or complexity of the
proceedings required to shepherd this case to that conclusion places this case outside the
heartland of a typical IDEA case.
Consequently, and in line with the authority of a substantial number of cases in this
district, the Court agrees with the District that the prevailing market for IDEA litigation is 75%
of the Laffey matrix rates. See, e.g., Reed, 2015 WL 5692871, at *6. Plaintiffs have failed to
13
demonstrate that this case is of sufficient complexity to justify a different rate. As a result, the
Court will award fees for Ms. Savit’s work at a rate of 75% of the Laffey rate: $382.50. 9
For purposes of Ms. Becker’s work, the Court will award fees at the $325 hourly rate
Plaintiffs request. See Pls.’ Mem. Supp. at 12. Plaintiffs have not provided an exact calculation
of the number of years of Ms. Becker’s experience but, as best the Court can discern from the
resume that Plaintiffs attach, as of 2014 Ms. Becker had worked for 18 years as an attorney. See
Pls.’ Mot. Summ. J. Ex. B2, ECF No. 11-7 (listing Ms. Becker’s graduation from law school in
1995 and legal experience beginning in 1996). Although the District, in a single sentence of its
Reply, asks the Court to “award fees at 75% of the Laffey Matrix rate” for Ms. Becker, see Def.’s
Reply at 7–8, the Laffey rate in 2013–2014 for an attorney with eighteen years of experience was
$450, see Def.’s Ex. 1. Awarding Ms. Becker fees of $337.50 (75% of the 2013–2014 Laffey
rate), would in fact overcompensate Plaintiffs. Therefore, the Court will apply the hourly rate
that Plaintiffs were actually charged for Ms. Becker’s services: $325.00
b. The Prevailing Market Rate for Paralegal Services
Plaintiffs also seeks a fee award for certain paralegal services performed by Ms. Savit (at
a much lower rate of $140 per hour), and two legal assistants, Jonathan Levitt (at a rate of $125
per hour), and Mathiu Antezana (at a rate of $75 per hour). See Pls.’ Mem. Supp. at 12; Pls.’
SOF ¶¶ 73, 83. Ms. Savit’s declaration briefly describes Mr. Levitt and Mr. Antezana’s
education and years of experience, see Savit Decl. ¶ 12, but the District claims that her testimony
fails to provide evidence of a prevailing market rate for their services, see Def.’s Mem. Supp.
Opp’n at 6–7.
9
Because this figure is lower than the $390 Ms. Savit actually charged to Plaintiffs, the
Court therefore does not consider whether reimbursing Plaintiffs at a rate higher than the one Ms.
Savit charged (as Plaintiffs’ $425 suggested rate would have) would be appropriate.
14
Fee awards for paralegal or legal assistant services are permissible, so long as they are
appropriately compensated at their market rates. See Role Models Am., Inc. v. Brownlee, 353
F.3d 962, 973 (D.C. Cir. 2004); In re Olson, 884 F.2d 1415, 1426 (D.C. Cir. 1989). However,
“purely clerical or secretarial tasks should not be billed at a paralegal rate regardless of who
performs them.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). Here, Plaintiffs
have included a detailed invoice describing the time that each individual, including Mr. Levitt
and Mr. Antezana, spent on the various tasks related to the litigation. See Pls.’ Ex. B3, ECF No.
11-8. The legal assistant tasks for which Plaintiffs seek additional fees include “assembl[ing]
documents for due process complaint,” “[p]repar[ing] transcripts for inclusion with disclosures,”
“[s]can[ning] and number[ing] exhibits,” and “[p]reparing [a] partial exhibit index and binder.” 10
See id. at 35, 43, 44.
While Plaintiffs’ filings do not specifically identify a prevailing market rate for paralegal
services in the D.C. area, the Court notes that the rates sought for Ms. Savit, Mr. Levitt, and Mr.
Antezana all fall below the $145 prevailing market rate under the 2013–2014 Laffey matrix. See
Def.’s Ex. 1. Consistent with the Court’s analysis above, the Court finds that a rate at 75% of the
Laffey rate, $108.75, is the appropriate upper limit for paralegal services in this case.
Accordingly, the Court will reimburse paralegal time for Mr. Antezana at the $75 per hour rate
Plaintiffs request, and Ms. Savit and Mr. Levitt at a rate of $108.75 per hour.
10
These activities appear most akin to providing “assistance with depositions,
interrogatories, and document production” and “compilation of statistical and financial data,”
which are generally reimbursable, Jenkins, 491 U.S. at 288 n.10, and the District has not argued
otherwise. Compare In re Meese, 907 F.2d 1192, 1203 (D.C. Cir. 1990) (describing as “purely
clerical or secretarial” tasks such as “delivering or picking up various documents as well as
photocopying” (internal quotation marks omitted)).
15
2. The Number of Hours Billed by Plaintiffs’ Counsel
The District also argues that any fees awarded to Plaintiffs should be reduced, or
alternatively, that the amounts claimed by Plaintiffs are excessive. The Court addresses each
argument in turn.
a. Reduction in Fees for Limited Success
In its Cross Motion and Opposition, the District argues that any attorneys’ fees awarded
to Plaintiffs should be reduced because of Plaintiffs’ limited success on the merits. See Def.’s
Mem. Supp. Opp’n at 10–11. In their Reply, Plaintiffs assert that they were successful on all
claims for relief other than their claim for compensatory education, and the request for
prospective placement at Chamberlain. Pls.’ Reply at 14–17.
It is within the Court’s discretion to reduce an attorneys’ fee award in order to account for
limited success on the merits. Hensley, 461 U.S. at 433; Lopez v. District of Columbia, 383 F.
Supp. 2d 18, 22–23 (D.D.C. 2005). Indeed, for partially prevailing parties, “the degree of the
plaintiff’s overall success goes to the reasonableness of the award.” Tex. State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989). Thus, regardless of whether counsel’s total
number of hours expended on litigation was reasonable, it remains within the court’s discretion
to reduce the overall fee award to reflect the litigant’s degree of success. See Dickens v.
Friendship-Edison P.C.S., 724 F. Supp. 2d 113, 121 (D.D.C. 2010). Where, however, a plaintiff
has obtained excellent results, the attorney should fully recover his fee. See Hensley, 461 U.S. at
435. “In these circumstances, the fee award should not be reduced simply because the plaintiff
failed to prevail on every contention raised in the lawsuit.” Id.
When awarding fees for a partially successful litigant, it is crucial to first determine
whether the claims on which the plaintiff prevailed are related to those claims on which the
16
plaintiff did not succeed. See id. at 434–35. When the claims “involve a common core of facts”
or are based on “related legal theories,” “[m]uch of counsel’s time will be devoted generally to
the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim
basis.” Id. at 435. Consequently, the court should “focus on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id.
In this case, the parties fundamentally disagree over the degree of success achieved by
Plaintiffs. The District argues that Plaintiffs failed to prove two of their three claims during their
appearance before the hearing officer. See Def.’s Mem. Supp. Opp’n at 11. Namely, the District
asserts that Plaintiffs failed to show that DCPS denied Jaden a FAPE by failing to convene an
IEP meeting in December 2012, and failing to complete a revision of Jaden’s IEP in January
2013. See id. As a result, the District argues for a mathematical approach to fee reduction,
suggesting that any fees awarded to Plaintiffs should be reduced by at least fifty percent. See id.
In response, Plaintiffs assert that the District’s arguments for limited success are “overblown”
because Plaintiffs were awarded almost all of the relief that they sought. Pls.’ Reply at 14–15.
In this sense, Plaintiffs argue for a more comprehensive approach to fee reduction, suggesting
that the hours devoted to preparing for the administrative hearing were “directed toward
achieving the result [Plaintiffs] obtained.” Id. at 15.
Here, the District argues for the very mathematical approach that was renounced in
Hensley. Rather than reducing fee awards based on the number of claims achieved by a
prevailing litigant, Hensley advocates for a more holistic assessment of the relief sought. See
461 U.S. at 434 (noting that the appropriate inquiry is: “did the plaintiff achieve a level of
success that makes the hours reasonably expended a satisfactory basis for making a fee award?”).
Indeed, courts in this district have applied Hensley in other cases involving attorneys’ fees. See,
17
e.g., Brown v. District of Columbia, 80 F. Supp. 3d 90 (D.D.C. 2015); McAllister v. District of
Columbia, 21 F. Supp. 3d 94 (D.D.C. 2014); Santamaria v. District of Columbia, 875 F. Supp.
2d 12 (D.D.C. 2012). As this court explained in McAllister, “[w]hen determining how to reduce
fee awards for partially successful plaintiffs, the court must analyze the relationships amongst the
successful and unsuccessful claims.” 21 F. Supp. 3d at 102 (citing Hensley, 461 U.S. at 434–35).
If the claims “involve a common core of facts,” or are based on “related legal theories,” “[m]uch
of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim basis.” Hensley, 461 U.S. at 435.
In this case, it is undisputed that Plaintiffs received less than all of the relief sought at the
administrative level. See Am. Compl. Ex. 1; see also Pls.’ Reply at 14 (conceding that Plaintiffs
did not prevail on their claim for compensatory education and request for prospective placement
at Chamberlain). In addition, while Plaintiffs prevailed on their claim for IEP denial based on
DCPS’s failure to provide Jaden with an IEP and services within a reasonable time of his start at
Hospitality, they failed to sustain the proper burden of proof with regard to allegations that
DCPS’s failure to convene an IEP meeting following Plaintiffs’ letter in December 2012, and
complete the revision of Jaden’s IEP in January 2013. See Am. Compl. Ex. 1 at 16–17.
Therefore, a reduction in fees in some respect is justified.
After reviewing the record of this case, however, the Court finds that many of the
underlying issues are interrelated and therefore cannot be easily divided by claim. Moreover, the
Court notes that Plaintiffs’ counsel achieved an exceptional result: reimbursement for private
residential placement and a wilderness program, which the District does not dispute is
extraordinary relief. Other than the college support, the District does not identify anything else
that Plaintiffs could have achieved at the high school level. The award of compensation, which
18
resulted in total payments in the amount of $248,114.64 speaks for itself. See Pls.’ SOF ¶ 53;
Def.’s Response to Pls.’ Statement of Material Facts ¶ 53 (“Def.’s SOF”), ECF No. 12-1. As
does Jaden’s subsequent educational achievement, improving dramatically from twice failing
eleventh grade to receiving his high school diploma and attending college.
As a result, the Court will instead reduce the full fee award using a holistic approach that
considers the claims brought and the overall relief received. See Pls.’ Reply at 14–17; see also
McAllister, 21 F. Supp. 3d at 103 (“A certain amount of the work performed in any case is
performed for all claims, and cannot be so easily sub-divided.”). Here, Plaintiffs sought relief
for DCPS’s denial of a FAPE in relation to the following violations: (1) DCPS’s failure to
provide Jaden an appropriate IEP and services within a reasonable time of his entry into
Hospitality at the beginning of the 2012 school year, until December 4; (2) DCPS’s failure to
convene an IEP meeting to revise Jaden’s IEP, even after receiving notification from Plaintiffs
on December 3, 2012 of the inappropriateness of the IEP; and (3) DCPS’s failure to complete
revision of Jaden’s IEP and determine an appropriate placement, even after a year-long
reevaluation and development process which began in January 2013. See Am. Compl. Ex. 1 at 4–
5. Additionally, Plaintiffs sought two types of relief during the hearing process: compensatory
education and reimbursement for the tuition, fees, and transportation expenses incurred in
sending Jaden to both Legacy and Chamberlain. See id. at 18–19.
Here, Plaintiffs received a large proportion of the relief they had originally sought. For
example, although Plaintiffs failed to sustain their burden of proof on two of their denial-of-
FAPE claims, they nevertheless prevailed on their first claim. See id. at 14–16. Because they
prevailed on the first claim, the hearing officer awarded Plaintiffs their requested
reimbursements for the tuition, fees, and expenses associated with sending Jaden to Legacy and
19
Chamberlain. See id. at 18–19. In addition, the hearing officer ordered DCPS to convene an IEP
team meeting within ten days of the administrative decision, in order to review Jaden’s IEP and
make any determinations related to future placement. See id. at 19.
Regarding the District’s assertion that Plaintiffs’ fee award should be reduced by fifty
percent or more, Def.’s Mem. Supp. Opp’n at 11, the Court concludes that the level of success
achieved does not warrant such a drastic reduction in the fee award. Despite the hearing officer’s
finding that Jaden was denied a FAPE on only one of the three issues for which Plaintiffs
requested relief, the claim on which Plaintiffs prevailed nevertheless shares a “common core of
facts” with those underlying the other two claims. Hensley, 461 U.S. at 448. Here, this
“common core” includes the fact that DCPS failed to properly implement Jaden’s FAPE, and
further that Jaden’s placement was inappropriate. See Pls.’ Mem. Supp. at 2–5. For example,
Plaintiffs’ claim that DCPS denied Jaden a FAPE by failing to convene an IEP meeting
stemmed, at least in part, from the fact that DCPS failed to provide Jaden an appropriate IEP and
educational services. Both of these claims, despite one of them being unsuccessful, are related to
the larger claim that Jaden’s initial placement at Hospitality was inappropriate. Accordingly,
because the claims are sufficiently interrelated, the court will not divide the hours on a claim-by-
claim basis, but instead will modestly reduce the award of attorneys’ fees. See Hensley, 461 U.S.
at 436–37 (“The district court may attempt to identify specific hours that should be eliminated, or
it may simply reduce the award to account for the limited success. The court necessarily has
discretion in making this equitable judgment.”); see also McAllister, 21 F. Supp. 3d at 102–04.
The Court further believes it appropriate to reduce the total award by ten percent. While
Plaintiffs were unsuccessful on two of their secondary claims—DCPS’s failure to convene an
IEP meeting and complete a revision of Jaden’s FAPE—they were nevertheless successful on
20
their primary claim for denial of a FAPE. See Am. Compl. Ex. 1 at 14–16 (finding that DCPS
denied Jaden a FAPE by failing to provide him an appropriate IEP and services within a
reasonable time of his entry into Hospitality). In this sense, the claim on which Plaintiffs were
successful resulted in the primary relief sought. See Hensley, 461 U.S. at 436–37 (focusing on
the overall relief obtained by the prevailing party). This Court does recognize that Plaintiffs
received less than all of the relief sought, see, e.g., Dickens, 724 F. Supp. 2d at 121–23 (reducing
the plaintiffs’ fee award because the plaintiffs received only a portion of their requested relief),
but in light of Plaintiffs’ overall degree of success in their administrative claim against the
District, as well as the interconnected nature of the claims, the Court will reduce the attorneys’
fee award by ten percent. 11 Accordingly, Plaintiffs should receive $44,815.7312 in attorneys’
fees.
b. Alleged Overbilling
The Court makes brief note of the District’s contention that Plaintiffs engaged in
overbilling. See Def.’s Men. Supp. Opp’n at 4. Specifically, the District contends that Plaintiffs’
11
The Court also acknowledges Plaintiffs’ claim for an additional award of fees, as
compensation for the time and efforts reasonably expended in seeking their award of attorneys’
fees. See Pls.’ Mem. Supp. at 17–18. However, as Plaintiffs note, the Court will reserve a
decision on this claim for a later date, as the total cost of securing the fees will not be known
until after the pending motions for summary judgment are resolved. See id.; see also Kaseman v.
District of Columbia, 444 F.3d 637, 640–41 (D.C. Cir. 2006) (noting that parties who prevail at
the administrative level can also recover “fees on fees” for time devoted to obtaining attorneys’
fees).
12
This fee amount was calculated as follows: $47,047.50 for Ms. Savit’s legal work (123
billed hours—143 minus the erroneously included 20 hours—at a rate of $382.50 per hour); plus
$156.00 for Ms. Savit’s flat rate initial consultation fee (which the District has not specifically
contested), see Pls.’ SOF ¶ 83; plus $1,040.00 for Ms. Becker’s legal work (3.2 billed hours at a
rate of $325 per hour); plus $1,239.75 for Mr. Levitt’s paralegal work (11.4 billed hours at a rate
of $108.75 per hour); plus $225.00 for Mr. Antezana’s paralegal work (3 billed hours at a rate of
$75.00 per hour); plus $87.00 for Ms. Savit’s paralegal work (0.8 billed hours at a rate of
$108.75 per hour). Those values yielded an initial fee award of $49,795.25. Reduced by ten
percent, Plaintiffs should be awarded $44,815.73.
21
invoice for July 31, 2014 contains entries indicating that Ms. Savit expended 26.1 hours in a
single day, working on the IDEA litigation. See id.; see also Pls.’ Ex. B3 at 46–47. As properly
noted by the District, it is not humanly possible for one individual to work 26.1 hours in a single
day. However, Plaintiffs have conceded that this alleged overbilling was merely a typographical
error, and that one of the entries on that date should have read “two hours” instead of “22” hours.
Pls.’ Reply at 8. Further, Plaintiffs’ counsel notes that she has credited Plaintiffs’ account for the
twenty additional hours, and the reimbursement amount has been amended to reflect the proper
number of hours expended. See id. While the District claims that Plaintiffs’ failure to catch this
billing error is “more significant than Plaintiffs would like to admit,” and that the error indicates
that Plaintiffs are not driven by economic considerations in their pursuit of attorney’s fees, see
Def.’s Reply at 10, the Court has no reason to doubt that the overbilling was anything other than
an oversight and addresses the issue no further.
C. Award for Costs Incurred
Plaintiffs also request reimbursement for expenses associated with the litigation of their
claims. See Pls.’ Mem. Supp. Mot. Summ. J. at 17. Specifically, Plaintiffs assert that they were
charged $2,252.74 in expenses, in addition to the legal fees incurred. See id. “An award of costs
for copying, faxing and postage . . . are customarily included in fees awards.” Kaseman v.
District of Columbia, 329 F. Supp. 2d 20, 28 n.7 (D.D.C. 2004); see also Sexcius v. District of
Columbia, 839 F. Supp. 919, 927 (D.D.C. 1993) (noting that “[r]easonable photocopying,
postage, long distance telephone, messenger, and transportation and parking costs are
customarily considered part of a reasonable ‘attorney’s fee’”); Bailey v. District of Columbia,
839 F. Supp. 888, 891–92 (D.D.C. 1993). Such costs are only shifted to the defendant provided
that they are reasonable. See Bailey, 839 F. Supp. at 892.
22
Attached to their Motion for Summary Judgment, Plaintiffs included detailed invoices of
the charges incurred in relation to the IDEA litigation. Included in these invoices are the various
costs to which Plaintiffs refer. See generally Pls.’ Ex. B3. Specifically, Plaintiffs claim
$1,993.50 in expenses stemming from the production of transcripts, in addition to other costs
associated with photocopying, postage, mileage reimbursement, and use of public transportation.
See Pls.’ SOF ¶ 84. A prevailing party’s request for costs need not be denied simply because the
party has failed to provide supporting documentation, but a lack of detail may affect the amount
of expenses and costs that the prevailing party is permitted to recoup, as in those instances where
detail is lacking the Court is unable to “rely on counsel’s integrity” in determining “whether [the]
expenses were ‘reasonable’ as contemplated by statute.” Harvey v. Mohammed, 951 F. Supp. 2d
47, 70 (D.D.C. 2013).
Here, the District generally states in its Opposition that “Plaintiffs’ bill of costs lacks
sufficient detail,” see Def.’s Mem. Supp. Opp’n at 1, and claims in its statement of facts that
Plaintiffs have failed to provide a “statement itemizing the costs and linking the costs to the
IDEA administrative hearing,” Def.’s SOF ¶ 84. Otherwise, the District does not directly contest
Plaintiffs’ request for costs. As Plaintiffs point out, however, a close review of the invoices they
have submitted provides ample clarity about the purpose of each expense. For example, an entry
dated March 24, 2014 lists expenses in the amount of $1,993.50 for transcripts related to IEP
meetings. See Pls.’ Ex. B3 at 31. A June 2, 2014 entry states that mileage costs stemmed from
“[r]ound-trip mileage to resolution session,” id. at 39, while an entry from July 25, 2014 states
“Metro [t]o student hearing office,” id. at 44. For these expenses, the Court finds that Plaintiffs
are entitled to fully recover their costs for associated transportation, mileage, and transcripts, and
23
the District does not argue that the transcript and transportation costs were unnecessary or
unreasonable.
Plaintiffs’ request for postage and copying expenses are admittedly somewhat more
opaque. Yet, one need only compare the “professional services” entry for the date of the expense
in question to determine the general purpose of the expense. For example, a June 19, 2014
expense for the postage of two letters, see Pls.’ Ex. B3 at 44, was incurred on the same date that
Ms. Savit’s timekeeping records reflect she made edits to a letter to a District of Columbia public
school official, see id. at 38. In addition, the $214.44 requested for photocopying expenses
almost entirely results from a single $212.14 invoice for the copies of due process hearing
exhibits. See id. at 44. And, contrary to the District’s blanket assertion that Plaintiffs have failed
to itemize the other two dollars and change requested for photocopying, each entry was made on
a date for which Plaintiffs have provided a corresponding “professional services” entry
describing the attorney’s legal research, drafting, or other activities. Compare, e.g., id. at 55
(describing Ms. Savit’s preparation of a check to Chamberlain school and drafting a letter
requesting proof of payment), with id. at 56 (listing photocopying expenses for two pages).
Accordingly, the Court will award Plaintiffs the $2,252.74 requested in costs.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment shall be
GRANTED IN PART AND DENIED IN PART, and the District’s Cross-Motion for Summary
Judgment shall be GRANTED IN PART AND DENIED IN PART. An order consistent with
this Memorandum Opinion is separately and contemporaneously issued.
Dated: December 29, 2015 RUDOLPH CONTRERAS
United States District Judge
24